The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

Tuesday, April 29, 2008

If you handle personal information, you'd better know the exceptions in privacy laws

If you handle personal information and only read one privacy law article, this one should be it:

Far too often, bureaucrats, cops and others use poorly understood privacy laws as a justification for inaction. Maybe it's just that they don't fully understand the myriad rules and the multiplicity of exceptions.

Privacy laws are complicated and are not well understood, even by people whose day-to-day operations are affected by them. But they are generally sensible and coherent. And -- believe it or not -- they are laced with common sense.

I've had the opportunity to look at every privacy law in Canada and I don't think I've seen one that does not have a public interest override. A public body, in the public sector context, can disclose personal information without consent if it is in the public interest to do so. There are often other exceptions from the general rule that requires consent.

Some may recall the aftermath of the south Asian tsunami where the federal government said they couldn't name victims or survivors because of the Privacy Act. The Privacy Commissioner and others were pretty quick to point out s. 8 of the Privacy Act, which allows the government to disclose personal information where it is in the public interest:

8(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed

...

(m) for any purpose where, in the opinion of the head of the institution,

(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or

(ii) disclosure would clearly benefit the individual to whom the information relates.

I was recently reminded of this in a discussion about the failure of the police in Merritt BC to identify a suspect on the lam after a family was found murdered. Police blamed privacy laws. (RCMP grilled for delay in alerting town over suspect) The National Post Editorial Board called them out on the misstep:

...Two days later, Ms. Clarke returned from errands to find her children murdered, and their father vanished along with his dog. The RCMP, confronted with a gruesome spectacle that may have resulted from their failed efforts to get Schoenborn under lock and key, took nearly a full day to announce to the public in Merritt that he was the prime suspect in the killings. Their excuse? "Due to privacy concerns," said RCMP Staff Sergeant Scott Tod, "we had to make sure that we had information that this was the suspect before we released his name."

"Privacy" is a popular item these days in the lexicon of justice, as it is used by the Mounties. No act of ineptitude in communicating with the public can possibly escape its reassuring cover, even though every privacy law or code written down anywhere in the last 50 years contains public-interest exemptions.

Most recently, a University in Ontario has been called to account for not notifying the parents of a mentally ill student who subsequently committed suicide. Privacy laws were pointed to as preventing such action. Anne Cavoukian and her counterparts have reminded universities that these laws are easy scapegoats, but without exception contain provisions that allow privacy rights to be overridden in certain circumstances.

...University officials say they followed procedures and couldn't tell Kajouji's parents about her mental health because of the province's privacy law. They also indicated universities that don't respect the privacy of their students' health information risk driving students away from the very services designed to help them.

Ontario's privacy commissioner, Ann Cavoukian, and several of her counterparts in other provinces, say universities need to have a clearer understanding of what privacy laws allow and they cautioned that too often privacy laws are the automatic target of blame when controversy arises.

Cavoukian's office provided a fact sheet several years ago to universities explaining the law allows them to disclose personal health information in "compelling circumstances" and if they believe on reasonable grounds it would eliminate or reduce the risk of bodily harm.

Determining whether a situation warrants disclosure is a judgment call, Cavoukian said in an interview, though the law affords protection to the decision-maker as long as he or she acted in good faith.

"If you are a health-care practitioner or a university professional and you have information relating to a student that is considering suicide and you fear for that person and want to reduce the risk of suicide, absolutely you are allowed to release that information," she said. "It's not an easy decision but it is one that is permitted under our privacy laws and I'm sick and tired of people saying that it's the privacy laws that prevented the counsellors from contacting the girl's parents. That's incorrect," she said.

... Suzanne Blanchard, vice-president for student support services, said in an e-mail message the university has specific procedures to deal with students who are in "imminent danger of doing harm to themselves or others."

"Carleton University has reviewed its actions in the aftermath of Nadia's tragic death. We believe that we followed all proper procedures and provided all the support services we could for Nadia," she said. "Carleton University is always diligent in its compliance with Ontario's privacy laws and we believe that we acted, and continue to act, in accordance with those laws."

Cavoukian said some universities take their obligations under the privacy law seriously, but there is still a lot of confusion. She plans to convene a meeting with the Council of Ontario Universities in an attempt to clarify any lingering questions.

Saskatchewan's privacy commissioner agreed there is a "significant need for more education" about the flexibility that is built into privacy laws.

"Sometimes you have people who don't want to do the wrong thing and so therefore you get a kind of paralysis and they don't share information even when the law allows them to and it's appropriate to do so," said Gary Dickson.

Dickson said Kajouji's death, while tragic, provides incentive for universities to ensure they are prepared to deal with students' mental health issues and with situations where informing the parents is up for debate. "Decisions will have to be made and then there have to be people with the appropriate training and judgment who can then make that discretionary decision," he said.

Frank Work, Alberta's privacy commissioner, said it has to be kept in mind Kajouji was an adult and the university may have felt her situation was under control. All the law asks is that a standard of reasonableness be applied, said Work.

"I think it's true in just about every privacy law, the standard is always reasonableness, not perfection," he said.

People will disagree on whether Carleton made the right decision, but one thing the privacy commissioners all agree on is the decision needs to be given due consideration.

"The worst case scenario is if it's just neglect. They saw the bus coming and they didn't yell: 'Get out of the way.' We don't know here. Hopefully in this case they made a judgment call," said Work.

Ontario's commissioner similarly said university officials have to take the time to make the difficult determination and should not rely on privacy laws as the default reason for not disclosing personal information.

"I would urge people to resist the knee-jerk reaction of automatically blaming privacy laws," Cavoukian said.

Here is the moral of this story: Whenever common sense or humanity seem to bump up against privacy laws, take a close look at the law and its exceptions. You will probably find that the drafters have designed the laws to accommodate common sense and humanity.

Please note that I am only able to provide legal advice to clients of my firm. If you have a privacy matter, please contact me about becoming a client. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser may not be protected by solicitor-client privilege.

The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Due to professional ethics, the author may not be able to comment on matters in which a client has an interest. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.